Opinion
8 Div. 650.
November 20, 1924. Rehearing Denied January 28, 1925.
Appeal from Circuit Court, Morgan County; Jas. E. Horton, Jr., Judge.
E. C. Nix, of Albany, for appellant.
The complaint is sufficient as a count in trespass. Pike v. Elliott, 36 Ala. 69; Code 1907, § 5382 (26); Benjamin v. Slaughter, 151 Ala. 445, 44 So. 468; 38 Cyc. 994.
Eyster Eyster, of Albany, for appellee.
Brief of counsel did not reach the Reporter.
The complaint and the amendment thereto gave the trial court very distinctly to understand that plaintiff was bringing his suit to recover the statutory penalty, denounced by section 6035 of the Code of 1907, for cutting trees. The trial court cannot now be put in error on the ground that the complaint might have been sustained as a complaint in trespass without regard to the statute.
Plaintiff showed an equity in the land and the trees cut, but failed to show that the legal estate was vested in him. This court has repeatedly held that the legal title in plaintiff is necessary to the maintenance of the action. Shelby Iron Co. v. Ridley, 135 Ala. 513, 33 So. 331, and cases cited.
The court committed no error in giving judgment for the defendant, appellee.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.